Darren Marton v Tabcorp Holdings Ltd
[2024] FWC 3195
•22 NOVEMBER 2024
| [2024] FWC 3195 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Darren Marton
v
Tabcorp Holdings Ltd
(U2024/12221)
| COMMISSIONER FOX | MELBOURNE, 22 NOVEMBER 2024 |
Application for an unfair dismissal remedy – no exceptional circumstances demonstrated – extension of time not granted – application dismissed.
On 14 October 2024, Mr Darren Marton made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Marton’s application is Tabcorp Holdings Ltd (the Respondent).
In his Form F2 application, Mr Marton alleged that his dismissal took effect on 20 September 2024. Mr Marton filed his application on 14 October 2024, three days outside the 21-day time period required to make an application for an unfair dismissal remedy.[1]
For Mr Marton to proceed with his application, it is necessary that time be extended until 14 October 2024, pursuant to s.394(2)(b) of the Act. The Commission can only consider an extension of time if exceptional circumstances exist, taking into consideration the factors outlined in s.394(3) of the Act.
For the reasons given below, in considering these factors, I am not satisfied that Mr Marton has demonstrated that there are exceptional circumstances and therefore do not extend time for Mr Marton to make his application.
Things I Must Consider
The Commission can grant an extension of time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances.
Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
a)the reason for the delay;
b)whether the person first became aware of the dismissal after it had taken effect;
c)any action taken by the person to dispute the dismissal;
d)prejudice to the employer (including prejudice caused by the delay);
e)the merits of the application; and
f)fairness as between the person and other persons in a similar position.
The meaning of “exceptional circumstances” was considered and summarised by the Full Bench in Nulty v Blue Star Group:[2]
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
Background
Mr Marton had been a casual employee with the Respondent since 1997. His employment was terminated by the Respondent on 20 September 2024 by reason of alleged misconduct. He was advised of his dismissal both verbally and in writing.[3]
The matter was listed for 18 November 2024 and proceeded by way of a Determinative Conference
The parties filed submissions and witness statements in accordance with Directions issued on 25 October 2024. My Chambers compiled this material into a ‘Digital Hearing Book’ which was distributed to the parties prior to the Determinative Conference. Noting that there were no objections from either party, I accepted into evidence the entirety of the Digital Hearing Book.
Evidence
At the Determinative Conference, Mr Marton gave the following evidence:
He was aware of the 21-day timeframe to file his application.
He began the process of making the application on 23 September 2024 but was of the view that he needed to have a copy of his separation certificate in order to file his unfair dismissal application.
He requested a copy of his separation certificate from the Respondent on 5 October 2024.
He filed his application on 14 October 2024.
He received his separation certificate on 25 October 2024.
He had a sick relative in hospital, to whom he was close, and this caused the filing of his unfair dismissal application to ‘slip [his] mind’.
Section 394(3) Considerations
Reason for the delay
Mr Marton outlined two reasons for the three-day delay:
He was waiting for the Respondent to provide him with a separation certificate so he could file it with the Commission, and
He was dealing with a sick relative suffering from a serious illness.
The first reason given by Mr Marton for the delay was that he ‘was waiting for Tabcorp to send a separation letter so [he] could send to FWC (sic)’.[4] Mr Marton’s evidence was that this was required of him as part of the online lodgement of an unfair dismissal application.
However, a separation certificate is not required by the Commission to file an unfair dismissal application. The Commission’s online lodgement system allows parties to file any additional material to the Form F2. However, there is nothing stating that any particular or specific documentation, such as a separation certificate, is required to make an unfair dismissal application.
Mr Marton gave evidence that he requested a copy of his separation certificate from the Respondent on 5 October 2024. A copy of the certificate was provided to him on 25 October 2024. That Mr Marton filed his application without a separation certificate on 14 October 2024 is inconsistent with the reason he relies on for the filing of his late application, as it shows he was able to complete the filing of his application without the need to provide a separation certificate.
The second reason given by Mr Marton for the delay was that he had a relative who was in hospital around this time.[5] At the Determinative Conference, it was Mr Marton’s evidence that his relative’s illness meant that the filing of his application ‘slipped [his] mind’. While it is acknowledged that it can be a challenging time for people when someone close to them is ill, no evidence was provided by Mr Marton to show how or why this caused him to file his application three days late.
The Respondent submits that Mr Marton has not provided any evidence which states with specificity how the illness of this relative prevented Mr Marton from being able to lodge his unfair dismissal application within time. It cites the Full Bench decision of Australian Postal Corporation v Lili (Karen) Zhang[6] in which the Full Bench determined that any medical evidence must be sufficiently compelling to be given weight in an extension of time application. There is no evidence before me, medical or otherwise, which explains why Mr Marton was unable to file his application within 21 days and why it was instead filed three days late.
I consider neither of the reasons for the delay to constitute exceptional circumstances. I consider this weighs against a finding of exceptional circumstances.
Whether aware of the dismissal after it had taken effect
It is not disputed that Mr Marton was aware of his dismissal on 20 September 2024.
I consider this to be a neutral factor.
Action taken to dispute the dismissal
Action taken by an applicant to dispute the dismissal may favour the granting of an extension of time.
The Respondent contends that Mr Marton took no steps to dispute his dismissal.[7]. Mr Marton did not provide any evidence on this consideration contesting this point and there is no evidence before me to suggest that Mr Marton did contest his dismissal, such as by engaging in dialogue with the Respondent.
I consider this to be a neutral factor.
Prejudice to the Respondent
The Respondent submits that Mr Marton’s late application prejudices it because it has had to allocate resources to defend the extension of time application.
However, the relevant consideration here is whether the granting of the extension of time would then cause prejudice to the Respondent. I consider that any prejudice suffered to the Respondent would be no more than if the application had been made within time. I therefore consider this to be a neutral consideration.
Merits of the application
The Respondent, citing the Commission’s predecessor in Kyvelos v Champion Socks[8] submits that the Commission should not embark on a detailed analysis of the merits of the application. In its submissions, it notes that Mr Marton is a casual employee and has to overcome the jurisdictional hurdle of demonstrating that he satisfies the minimum employment pursuant to ss.383 and s384 of the Act. The Respondent submits that Mr Marton’s actions amount to misconduct and that it therefore had a valid reason to dismiss Mr Marton. Mr Marton contests that the dismissal is harsh and unjust.
Given the nature of the matter and the contested facts of the dispute, on the evidence before me, I am unable to make a full assessment on the merits of the case without hearing the full evidence.
I therefore consider the merits of the application to be a neutral factor.
Fairness as between the person and other persons in a similar position
As the Full Bench in Perry v Rio Tinto Shipping Pty Ltd noted, ‘this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.’[9]
Neither party made any substantiative submissions on this factor, nor did they direct me to cases involving other persons in similar positions to that of Mr Marton.
I consider this to be a neutral factor.
Conclusion
In view of all the matters set out in s.394(3) of the Act and considered above, there is one factor which weighs against the finding of exceptional circumstances, five factors which are neutral, and no factors which weigh in favour of a finding that there are exceptional circumstances.
Having weighed each of these factors and having considered them collectively,[10] I am not satisfied that there are exceptional circumstances which would warrant an extension of time. Mr Marton’s application for an unfair dismissal remedy is therefore dismissed, and an Order[11] to this effect will be issued with this Decision.
COMMISSIONER
Appearances:
D Marton on his own behalf.
K Simon for the Respondent.
Determinative Conference details:
2024.
Melbourne (By Video using Microsoft Teams):
18 November.
[1] Fair Work Act 2009 (Cth) s.394(2)(a).
[2] [2011] FWAFB 975.
[3] Digital Hearing Book (‘DHB’) page 45.
[4] Ibid page 11.
[5] Ibid.
[6] [2015] FWCFB 5285.
[7] DHB page 23.
[8] [2000] AIRC 540.
[9] [2016] FWCFB 6963 [41].
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901.
[11] PR781511.
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